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| The Church of St Cyriac, Lacock, by GB_1984 |
The principle of the presumption of innocence is of extreme importance, and the case of Cardinal George Pell has implications for the respect for—and security of—this principle.
That one is considered innocent until proven guilty is a vital pre-condition for our survival and well-being within a civilised society. Undermining such jurisprudence can lead to catastrophic miscarriages of justice which ultimately threaten our humanity—in fact, yours and mine.
The accused is not required to defend or prove their innocence—it is for the accuser to prove guilt—beyond reasonable doubt. It is one of the foundational legal principles—a bedrock of our civilisation: 'The burden of proof is on the one who declares, not on one who denies'. Or Ei incumbit probatio qui dicit, non qui negat in the ancient Latin.
Presumption of innocence is a legal right of the accused in a criminal trial, and an international human right embodied under Article 11 of the UN Universal Declaration of Human Rights.
A just law must be a fair law, which punishes the guilty, not the innocent. Presumption of innocence is an immunity against unjust accusations.
In the case of Cardinal George Pell, a disturbing and dislocating miscarriage of justice has been exposed within Australia's justice system—and presumption of innocence was almost lethally compromised and undermined.
A basic history of events—a timelined chronology if you will—would help:
• July 16 1996 — Bishop George Pell is appointed Archbishop of Melbourne. A former choirboy later testifies that the bishop molested him and his friend—both aged 13—in the vestry of St. Patrick’s Cathedral in Melbourne that year, after Mass.In overturning the jury's decision of December 2018, the seven High Court judges said the jury, ‘acting rationally on the whole of the evidence, ought to have entertained a doubt as to the applicant's guilt with respect to each of the offences for which he was convicted’.
• March 26 2001 — Archbishop Pell becomes Archbishop of Sydney.
• October 21 2003 — Pope John Paul II makes Archbishop Pell a Cardinal.
• February 25 2014 — Pope Francis appoints Cardinal Pell as his Finance Minister — Prefect of the Secretariat for the Economy.
• April 8 2014 — One of the choirboys dies aged 31, of a heroin overdose, without alleging the molestation by Pell, in fact telling his mother he had not been abused by Pell.
• August 5 2014 — Victoria police establish a task force to investigate how religious and other non-government organizations [NGO's] deal with abuse accusations.
• June 18 2015 — The surviving choirboy gives his first statement to the police, claiming sexual abuse by Cardinal Pell.
• December 23 2015 — The Victoria Police task force appeals publicly for information relating to allegations of sexual abuse while Cardinal George Pell was Archbishop fo Melbourne.
• March 1 2016 — Cardinal Pell testifies by video link from Rome, to the Australian child abuse inquiry. Pell is critical on how the Church has dealt with paedophile priests in the past, but *denies he had been aware of the extent of the problem.
• October 19 2016 — Victoria police go to Rome to question Cardinal Pell, who hears details of the choirboy’s abuse allegations against him for the first time.
• June 29 2017 — Police charge Cardinal Pell with multiple counts of historical sexual abuse. This makes him the most senior Catholic cleric to be charged in the Church’s abuse crisis. Pell denies the accusations and takes leave of absence from the Vatican to return to Australia to defend himself.
• July 26 2017 — Cardinal Pell makes his first court appearance on charges that he sexually abused multiple children in Victoria decades earlier. Details of the allegations are not made public. Pell vows to fight the allegations.
• May 1 2018 — A Magistrate commits Cardinal Pell to stand trial. He pleads not guilty to all charges.
• May 2 2018 — A Judge separates the charges into two trials; the first dating to his tenure as Archbishop of Melbourne, and the other when he was a young priest in Ballarat during the 1970's.
• December 11 2018 — The jury unanimously convicts Cardinal Pell on all charges in the Melbourne case.
• February 26 2019 — A suppression order forbidding publication of any details about the trial is lifted. Prosecutors abandon trial on the Ballarat charges.
• March 13 2019 — The judge sentences Cardinal Pell to six years in prison, on five sex abuse convictions, in which he must serve 3 years and 8 months before he is eligible for parole.
• August 21 2019 — Victoria Court of Appeal rules 2–1 to uphold the convictions, but there is ‘stinging dissent’ by that Court's leading criminal law expert.
• The High Court, Australia's top court, in an unusual procedural move, agrees to hear Cardinal Pell's leave to appeal, and his actual substantive appeal, concurrently.
• April 7 2020 — All seven judges of the High Court of the Australian Court of Appeal quash the conviction of Cardinal George Pell. In a volte-face, they unanimously agree the appeal has succeeded, dismiss all convictions, and release Cardinal Pell immediately—after he spent 13 months in high-security prisons.
There was ‘a significant possibility that an innocent person has been convicted, because the evidence did not establish guilt to the requisite standard of proof’. The High Court referred to what it called ‘the unchallenged evidence of the opportunity witnesses’ at the 2018 trial, which suggested there was cause for doubt.
This case has attracted world-wide attention for good reason.
What lies at the heart of our justice system is Lord Sankey's 'golden thread' which runs through criminal and common law: Guilt must be proved by the accuser's prosecution beyond any reasonable doubt. This undoubtedly did not take place in before the High Court judges intervened this April 2020 to make just the injustice.
It is better many guilty go free rather than one innocent is wrongly convicted and jailed for a crime they did not commit.
The Cardinal is entitled to be presumed innocent because that is what the Presumption of Innocence is all about—innocent until proven guilty.
Beware the spirit of the age. Alan Ryan, a professor of politics at Princeton University, sounded the alert thirty-two years ago: ‘Natural and inalienable rights to life, liberty and the pursuit of happiness have fallen into disrepute, along with a faith in reason and reason’s dictates.’
12 comments:
The essay focuses on the underlying legal principle of the ‘presumption of innocence’. Fair enough; that’s a just guiding rule; and my understanding is that the Australian legal system abides by that.
However, in looking down the chronology, as an impartial reader with no dog in the fight I see nothing that explicitly proves that the presumption of innocence was denied the defendant when the jury arrived at its verdict in December 2018.
Without categorical evidence to the contrary, I have to assume the empanelled jurors — a ‘jury of one’s peers’, as they say, with preemptory strikes by both sides — went into the trial and into their deliberations honoring the defendant’s presumed innocence.
Likewise regarding the presumption of innocence by the appeals court that apparently upheld the verdict, by a split decision, in August 2019.
I have no opinion whether the defendant was or was not guilty; that’s not appropriate for me to weigh in on, particularly given the dearth of evidence here. I defer to Australia’s legal system.
But, again, what’s important is I see nothing in either the chronology or surrounding narrative that supports the charge that, as the post says, ‘the presumption of innocence was almost lethally compromised and undermined’. The material proof of that assertion is omitted.
"In overturning the jury's decision of December 2018, the seven High Court judges said the jury, ‘acting rationally on the whole of the evidence, ought to have entertained a doubt as to the applicant's guilt with respect to each of the offences for which he was convicted’"
The Hight Court judges ruled that "the jury 'ought to have entertained a doubt as to the applicant's guilt".
That means the jury "entertained" a Presumption of Guilt, which is why I assert "the presumption of innocence was almost lethally compromised and undermined".
I think the presumption of innocence is particularly important with events so far off and subject to distorted memories and recall. In particular, witness evidence is even more prone to confused recollections than shortly after the event, while someone who is accused will have great difficulty defending themselves with regard to what "they did" when (if innocent) they can hardly be expected to remember much. Ironically, a guilty person has much more reason to remember events and be able to produce a coherent but false narrative.
By the way, that's a nice picture for the post! Where is the window?
Indeed, "the presumption of innocence is particularly important with events so far off and subject to distorted memories and recall...". And now there is a fresh abuse allegation against Cardinal Pell which has come just after his acquittal - alleged to have taken place over 40 years ago "back in the 1970s".
In our complex societies, we 'prioritise the principles of social life', as Yves Simon put it. Together with procedures which support those principles, this removes passions and prejudices as the basis for the system -- rather artificially, one might add.
I asked myself how plausible it is that someone should bring false charges against a Cardinal. Does that really happen? Indeed it does, and it has been proved. See The Australian, 'Cardinal George Pell convicted for a lacklustre display of empathy,' by Angela Shanahan. Which is not to say that all charges are false, including those where there is acquittal.
This past week, my neighbour was taken from his home and jailed. When we checked, the police had failed to follow Standard Operating Procedure. For instance, they failed to ask him for a statement, and it looks as though there wasn't a valid statement against him. Here is an example of what happens where passions and prejudices are allowed any room.
P.S. The stained glass is from the Church of St. Cyriac, in the village of Lacock, Wiltshire.
"I asked myself how plausible it is that someone should bring false charges against a Cardinal. Does that really happen? Indeed it does..."
Yes, indeed it does. In the case of the Southampton football manager Dave Jones, falsely accused of abusing his children [recounted in his autobiography 'No Smoke, No Fire' - 2009], the police were forced to 'trawl' in prisons to find inmates to come forward to back up the accuser's story. The presiding judge - Judge David Clarke - concluded: "No doubt there will be people who are going to think there is no smoke without fire. I can do nothing about that except to say such an attitude would be wrong"
May I commend a related and relevant article written yesterday in 'First Things' by Peter Hitchens - a well-known, outspoken and controversial columnist in this country [UK]:
https://richardwsymonds.wordpress.com/2020/04/21/peter-hitchens-on-liberty-justice-and-the-decline-of-the-jury-and-the-presumption-of-innocence/
The article is well worth a close read - especially towards the end where he discusses the Cardinal Pell case.
Refer Mr Hitchens to our blog!
I do agree with this concern… "No doubt there will be people who are going to think there is no smoke without fire. I can do nothing about that except to say such an attitude would be wrong" The thinking habit is buried deep in our evolutionary minds.
Yes, the 'no smoke without fire' attitude is an evolutionary bad habit of thinking. Our Justice system legally fights to break this bad habit by insisting Juries must be persuaded 'beyond reasonable doubt' that a defendant is guilty [in accordance with the presumption of innocence] - or so I thought.
Apparently now, 'beyond reasonable doubt' has been dropped. Juries need only be 'sure' of a defendant's guilt or innocence. The word 'sure' carries with it a very different meaning than 'beyond reasonable doubt' - and helps not in the fight to break a bad habit of thinking.
'Sure, beyond reasonable doubt' would help avoid miscarriages of justice done by a Jury.
These statements point to matters of interpretation, perhaps: “In overturning the jury’s decision of December 2018, the seven High Court judges said the jury, ‘acting rationally on the whole of the evidence, ought to have entertained a doubt as to the applicant’s guilt with respect to each of the offences for which he was convicted. That means the jury ‘entertained’ a Presumption of Guilt, which is why I assert ‘the presumption of innocence was almost lethally compromised and undermined.’ ”
I have no problem, of course, with the high court overturning the jurors’ vote for conviction; it’s the high court’s every right (authority) to do so, in line with the ‘rule of law’, and I’m not about to second-guess. Many countries have legal systems that operate similarly, of course. However, if, as you then assert, you’re correct that that means the high court was saying the jurors didn’t go into the trial respecting a ‘presumption of innocence, then I wonder how the high court might have read the minds of the jurors. Obviously, it couldn’t.
But here’s the rub — and where I differ with you as to interpretation of high court intent. Specifically, I disagree that in the high court saying the jury ‘ought to have entertained a doubt as to the applicant’s [defendant’s] guilt’ is the equivalent of its saying the jurors didn’t honor the presumption of innocence. The jurors could still have gone into the trial dutifully honoring a presumption of innocence, even if the high court later thought the evidence presented, despite that presumption, left room for ‘doubt’; I suggest the notions aren’t mutually exclusive.
I think these problems have to be resolved on a case-by-case basis. In this high-profile case - with intensive pre-trial media coverage - can it be reasonably assumed "the jurors could still have gone into the trial dutifully honoring a presumption of innocence"? I think not - thus my assertion of a presumption of guilt.
Interestingly, one eminent QC involved in the Bishop Bell case wrote to me last week saying: "I have some reservations about juries in sex cases".
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